153 F.

3d 727
98 CJ C.A.R. 3693
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

David R. HENDRICKS, Petitioner-Appellant,

v.
Steve HARGETT, Respondent-Appellee,
and
State of Oklahoma, Respondent.
No. 98-6115.

United States Court of Appeals, Tenth Circuit.

July 6, 1998.

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

1ORDER AND JUDGMENT*

2

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.

This case is before the court on David R. Hendricks' application for a

certificate of appealability. Hendricks seeks to appeal the district court's denial
of Hendricks' 28 U.S.C. 2254 habeas corpus petition. Because Hendricks has
failed to make a "substantial showing of the denial of a constitutional right,"
this court denies Hendricks' application for a certificate of appealability and
dismisses this appeal.

Hendricks asserts that his Oklahoma convictions for kidnaping and first degree

rape must be vacated because: (1) evidence of another crime was improperly
admitted at his trial; (2) a knife was improperly admitted at trial; (3) a copy of
his certificate of discharge from the Oklahoma Department of Corrections for a
prior conviction was improperly admitted at trial; and (4) the prosecutor
impermissibly vouched for the veracity of a prosecution witness. A magistrate
judge issued a Report and Recommendation, which recommended that
Hendricks' petition be denied. The magistrate thoroughly analyzed Hendricks'
petition and concluded that all of the evidence identified by Hendricks was
properly admitted and that even if it was not properly admitted, the evidence of
guilt was so overwhelming that the admission did not render his trial
fundamentally unfair. As to Hendricks' claim of prosecutorial misconduct, the
magistrate noted that Hendricks had taken the prosecutor's remarks out of
context and that when read in context, the prosecutor's remarks could not be
read as improper vouching. After de novo review, the district court adopted the
Report and Recommendation and denied the petition.

This court has reviewed Hendricks' application for a certificate of appealability

and appellate brief, the magistrate's Report and Recommendation, the District
Court's Order, and the entire record on appeal. That review demonstrates that
the district court's resolution of Hendricks' petition is not debatable among
jurists of reason, subject to a different resolution by this court, or deserving of
further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103
S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Because Hendricks has failed to make the
required showing, this court DENIES his application for a certificate of
appealability and DISMISSES this appeal. Furthermore, because Hendricks has
not presented a reasoned, nonfrivolous argument on the law and facts in support
of the issues raised on appeal, we DENY his request to proceed in forma
pauperis on appeal.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3